4 F. 499 -

4 F1d 499

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Case Text

4:99 in general business within the state, or assumed to exercise its corporate powers in any other instance. MCCRARY, C. J., held the statute applicable, and the answer sufficient. fuLLETT, D. J., dissented.

MAY and others ".

SUJMONS,

Collector.

(Circuit Court, D. MaMaMuaettB. -,lesO.) 1. REVENUJI}-LAw--oONSTBUOTloN.-'rhe denomination of articles enumerated in a revenue law is construed according to the commercial understanding of the terms used, and not with reference to the materials of which such articles may be made, or the use to which they may be applied. O'UrliI T. MOIrtln, 3 How. 109. Elliot v. Stl/Jrtwout, 10 Pet. 137.
I. 8AJm-" TIN PLATES "-REv. ST. f 2503.-" Tin p111 tes" are Dot Included in section 2503 of the Revised Statutes, under the terms" metals not herein otherwise provided for," or" manufactures of metals." Dodge T. ,Arth'Uf', 22 Int. Rev. Rae. 402, criticised.
&. BAlm-SAlIE-REv. ST. t 25M, 8oBED. E.-" Tin in plates or sheets" 'is subject to a duty of 15 per cent. aa tJalorem, in accordance with the

provisions of section 2504 of the Revised Statutes, schedule Eo

CLARK, D. J. The plaintiffs, in 1874, imported into the port of Boston 5,581 boxes of tin plates. The defendant, then collector of the port, assessed and collected a duty of lIS per cent. ad valorem on these plates. The plaintiffs paid the duty under protest, oontending that the duty should have been only 90 per cent. of 15 per cent. ad valorem; ,and the question to be considered here is whether the duty of 15 per cent. ad valorem was correctly laid, or whether it should have been, as plaintiffs contend, 90 per cent. of the 15 per cent. ad valmem. By section 2504 of the Revised Statutes, schedule E, p. 470, "tin, in plates or sheets," is subjected to a duty of 15 pel cent. ad valorem, and under this provision of the law the collector assessed the duty. But section 2503 of the Revised Statutes provides: "There shall be levied, collected, and paid

'\1$00

FEDERAL REPORTER.

llpon all h.ttic1es mentioned in the schedules contained in the
next section,"-that is, section 2504, just cited,-"imported from foreign countries, the rates of duty which are by the schedules, respectively, prescribed: provided, that on the goods, wares, and merchandise in this section enumerated and provided for, imported from foreign countries, there shall be levied, collected, and paid only 90 per centum of the several duties and rates of duty imposed by the said schedules upon said articles severally-that is to say, on all manufactures of cotton, of which cotton is the component part of chief value; on all wools, hair of the alpaca, goat, and other animals, and all manufactures wholly or in part of wool, or hair of the alpaca, and other like animals, except umbrellas, parasols, and sun shades covered with silk or alpaca; on all iron and steel, and on all manufactures of iron and steel, of which such metals, or either of them, shall be the component part of chief value, excepting cotton machinery; on all metals not herein otherwise provided' for,and all manufactures of metals, of which ,either of them is the <lOmponent part of chief value, excepting percussion-caps, watches, Jewelry, and other articles of orna· ment :pmvided, thl:!'t all wire rope and wire strand, or chain made of iron wire, either bright,. coppered, galvanized, or coated with other metals, shall pay the same rate of duty that now levied on the iron wire of which said rope, or strand, or 'is made; and all wire rope, and wire atrand, or chain :tpade of steel wire, either bright, coppered, galvanized, or coated with other metals, shall pay the same rate of duty that is now levied on steel wire, of which said rope, or strand, or chain is made; on all paper and manufactures of paper, excepting unsized printing paper, books, and other printed matter, and excepting sized or glued paper suitable only for printing paper; on all manufactures of India rubber, gutta percha, or straw, and on oil-cloths of all descriptions; on glass ano glassware, and on unwrought pipe clay, fine clay, and fuller's-earth; on all leather not herein otherwise provided for, and on all manufactures of skins, bone, ivory, horn, and leather, except gloves and mittens, and of which either of said articles is the component part of chief value, and on liquorice-

paste or liquorice-juice. n And the plaintiffs 'contend that, under the provisions of this section, "tin plates" should have been assessed 90 per cent. of 15 per cent. ad valorem, instead of the entire 15 per cent. If the plaintiffs are right in this position, it must be because "tin plates" are included in some of the general classifications of the section, as they are not mentioned, eo nomine, therein. The only classifications in which they can be included are metals or manufactures of metals. But they cannot be included among metals, because the metals mentioned are metals not herein otherwise provided for, and "tin plates" are otherwise provided for in the following section, schedule E, p. 467, of the Revised Statutes. It is objected that the words "herein otherwise provided for" apply only to section 2503, arid do not extend to other sections in the title; but this limitation 01' construction cani not be admitted,.becaus&-First, congress, in limiting:,ol defining the goods, wares, and merchandise to which the pro)·visions in section 2503 should apply;: uses the more precise . and restrictive words"in this 8eetion enumerated;" and, when it afterwards uses the words "not herein provided for,'1 must have intended something different and more extended,espe, cially as ;both expressions occur in thl) same section. They .can hardly' be held to be synonymous. Second, because the words "herein provided for," "or not: herein provid'ed for, '! as used in the United States Statutes, generally,if not always, refer to the act, chapter, or title, and not to the section. Before the revision they referred to the act or chapter, and since,more generally, to the title. Third, because, in section 2 of the act of June 2, 1872,-from which the provisions of section 2503 of the Revised Statutes are copied almost verbatim, and where this precise expression is used, and in the same manner, application, and connection,-it evidently does not apply to the 8ection fJ in which it is used, but extends to other provisions of the act. Fourth, because, to give the words the limitation or application contended for by the plaintiffs, they are rendered useless and meaningless in the seotion. There are no metals otherwise provided for in tha

.REPORTER.

section, and it would have been just as well to have omitted them and to have said metals, simply, as to have said metals
"not herein otherwise providqd for. "

It is objected by the plaintiffs that, if the words are construed to extend beyond the section, there is nothing for them to operate upon j and that so, they would defeat the object of this proviso j but that can hardly be so. lf examination be made of the concluding paragraph of schedule E, Rev. St. 467, it will be found that metals, Ullmanufactured, not otl!6'ru:ise provided for, pay 20 per cent. ad valorfm, and by this provision of section 2503 they pay 9() per cent. of 25 per cent. ad valorem. lf "tin plates" cannot be included among' metals "not herein otherwise provided for," are they included in manufactures of metals? 'fhe phrase is, "all manufacture8 oj metal8," and is broad enough and inclusive enough to includ& tin plates, which are made or manufactured from iron and tin j yet still the question rem!tins, are they so included'" Was such the intention of congress, and is such the proper construction of the statute? We think not, and-First, be· cause they are otherwise specifically provided for, both in section 2504 of the Revised Statutes, and in section 4 of the· act of June 6, 1872, which the provisions of the Revised Statutes in question are copied or taken. Second, because, in section 2 of the act of 1872, these precise words, "all man· ufacture8 of metals," are used just as broad and just as inclusive as in section 2503 of the Revised Statutes, and yet. they do not include "tin plates" therein, because tin plates are afterwards expressly provided· for in section 4 of the act, (17 Gen. St. 233,) and subjected to a duty of 15 per cent. ad valorem. It is difficult to see by what fair construction the words "all manufactures of metals" should be made to include more in section 2503 of the Revised Statutes than they do in section 2 of the 'act of June 6, 1872, (17 Gen. St., 231,) from whick they are copied verbatim, with the same context, and made applicable to the same matter; especially as in each case "tin plates" are especially provided for. Third, because congress, in the tariff acts, has no;

MAY 11. SIMMONS.

6011

included tin plates among manufactures of metals, but has designated them as tin plates specifically, or included them in some other provision. ' In the case agreed, it is stated that "the merchandise in question was properly classified as 'tin in plates,' and is known in commerce only as 'tin in plates, or tin plates,' and does not come under the provisions in schedule E, viz, 'iron and tin plates, galvanized or coated with any metal otherwise than by electric batteries, two and a half cents per pound.'" Now, if "tin plates" are known in commerce only by that name, it would naturally be expected that congress, in ing tariff acts, would also designate them by that name, because the name is specific and definite, and well known among merchants j and tariff laws generally follow the Ian.. guage of commerce. And 80 we find congress has done. Thus, in the act of July 4, 1779, at the first session of congress (1 Gen. St. 26) "tin plates," specifically:named as such, were made free, while tinware 'was taxed 7! per, cent. ad valOf"em. So, in the act of August 10, 1790, (1 St. 181,) "tin plates" are made free-specifically excepted from duty-while rolled iron' and all wares of tin are subjected to a duty of 7t per cent. ad valorem. ' Again,' by the act of May 2, 1792, (1
259,) "all manufactures of iron, steel, tin, pewter, copper, etc., of which either oj these metals is the article ofchiefvalue,not otherwise paTtieularly enumerated," are made to pay 10 per cent. ad valorem, but "tin plates"are continued on the free list by

section 2 of the same act. "This act of congress is particularly observable in this: here is the expression, "all manufactures of iron, steel, tin, pewter, and brass," just as strong, just as clear, just as free from ambiguity ll.sthe expression "all manufactures of metals," in section 2508 of the Revised Statutes, and yet it clearly does not include "tin plates." The act of 1816, April 27th, (3 Gen. St. U. S. 310,) which duties, ,imposed a duty of repealed all former laws 20 per cent. ad valoTem upon "all articles manufactured from brass, copper, iron, steel, pewter, lead, or.tin, or of wliich these metals, or either of them, is thema.terial of chief value, -re-enacting this proviBion.of the a'ct of 1792, in very nearly

PEDERAL REPORTER.

I

i

I.

its precise words,-and upon all articles not free and not sub. ject to any other rate of duty, a duty of 15 per cent. ad valorem. It omitted "tin plates" from the free list where they had heretofore been, and made no specific provision for them. The act of May 22, 1824, (4 Gen. St. 26,) increased the duty "in all manufactures, not otherwise specified, made of brass, iron, steel, pewter, lead, or tin, or of which either of these metals is a component material," from 20 to 25 per cent. ad valorem, but did not mention "tin plates." But the act of 1832, July 14th, (4 Gen. St. 588,) re.enacts this provision of the act of 1824-to-wit, "on all manufactures, not otherwise specified, made of brass, iron, steel, pewter, or tin, or of which either of these metals is a component material"in exactly the same words, making the duty 40 per cent. ad valorem instead of 25; and it is manifest that this provision does not include "tin plates," because they are by the same act again made free. See section 3, p. 590, 4 U. S. St. 629,) is instructive The act of March 2, 1833, (4 Gen. in the point now under consideration. It provided (section 1) for a reduction of duties in all foreign imports, where the duty exceeded 20 per cent. on the value thereof. Manufactures of brass, iron, steel, pewter, and tin, which then paid 40 per cent. ad valorem, were included in this provision. The reduction was to be the excess of the duty above 20 per cent., or in other words to 20 per cent. One-tenth of deduction was to be made bn and after December 31, 1833; one-tenth on and after December 31, 1835; one-tenth on and after December 31, 1837; one-tenth on and after December 31, 1839; and on the thirty-first day of December, 1841, one-half the residue of 'Eluch excess, and on the thirtieth day of June, 1842, the other half, was to be deducted. This left a duty of 20 per centum on the manufactures of brass, iron, steel, pewter, and tin on and after the thirtieth day of June, 1t:42. "Tin plates," at the passage of this act of March 2, 1833, were in the free list, (not included in the manufactures of iron and tin,) and by the fourth section of the aot (4 St. 630)

MAY V.SIMMONS.

505

were continued so until June 30, 1842, during all the time these deductions were taking place in manufactures of iron and tin, and then, by section 5 of same act, were cou' tinued, eo rwmine, on the free list after June 30, 1842, when the duties on manufactul'esof iron andtin were 20 per cent. ad valorem. The act of 1841 (5 Gen. St. 463) laid a duty on some articles then and before on the free list, and increased the duties on articles paying less than 20. per cent., but it continued "tin plates" on the free list. Coming, then, to June 30, 1842, we find "all manufactures, not otherwise specified, made of brass, iron, steel, pewter, or tin, or of which either of these metals is a component material," paying a duty of 20 per cent., "tin plates" on .the free list. The act, of August 30, 1842, (5 Gen. St. 553,) imposed a. duty of 30 per cent. on manufactures of brass, iron, steel, lead, copper,. pewter, and tin, not otherwise specified; and a duty of 2t per cent. on "tin them with other metals. The act of July 30, 1846, (9 St. 45,) continues the duty of 30 per cent. on the above manufactures, and imposes a duty of 15 per cent. on "tin plates." The act of March 3, 1857, (11 st. 193,) imposed a. duty of 24 per cent. on the above manufactures of iron and tin, and of 8 per cent. on "tin plates:" By the act of 1861. March 2, (12 St. 196,) these manufactures are made to pay a duty of 30 per cent. ad valorem, and "tin plates" 10 per cent. By the act of 1862, July 14, (12 St. 551,) these manufactures were made to pay a duty of 3e; per, cent., and "tin plates" 25 per cent. ad valorem. Coming next to the act of 1872, June 6, (17 St. 230,) we find a little different but very significant ppraseology. In the prior acts, the has been "on all manufactures, not otherwise specified," made of brass, etc., leaving it to be argued that "tin plates" were a manufacture of iron and tin otherwise specified. But here the expression is on all metals not otherwise provided for, and on aU manufactures of metals of which either of them is the component part of chief value, except percussion-caps, watches, jewelry, and other articles of ornament.

506

FEDERAL REPORTER.

Now, if "tin plates" be a manufacture of metals, and were intended to be classified and taxed as such, they must come under this expression of all metals, unless found among the excepted articles. But they are not found among the excepted articles, nor are they taxed, nor were they intended to be taxed by congress under this head of all "manu. factures of metals," because they are taxed elsewhere, under a subsequent section of the same act, (section 4,) and at a different rate, as "tin plates," eo nomine. Here is an unbroken legislation by congress from 1789 to 1879, a period of 90 years, in which "tin plates" have not been included in "manufaotures of tin or iron," and so taxed, but have generally been designated as "tin plates," and the 'duties laid on them as such specifically, and at a different -rate.' We find the same coursato be pursued in the Revised Statutes, and if "tin plates" are not included either in "metals not he..·ein otherwise provided for," nor among "manufactures of metals," they are not entitled to the reduction of the duty claimed by the plaintiff, and the assessment by the defendant was correct. The case of Dodge v. Arthur, tried in the southern district of New York, before Judge Shipman, and reported in 22 Int. Rev. Rec. 402, is relied upon by the plaintiffs as an authority in support of their construction of the law on the question; and it is so. But, upon the examination of the charge to the jury in that case, it is unsatisfactory. It proceeds entirely upon the ground that the Revised Statutes have altered the law as it stood in the act of June 6, 1872. It concedes that by the act of 1872 "tin plates" were not included in the words "in all metals not herein otherwise provided for, and in all manufactures of metals of which either of them is the component part of chief value, except in percussion-caps," etc., but maintains that these precise words in the Revised Statutes, if the case is correctly underetood, do include "tin plates." But by what process of expansion or inclusion this is done is not explained, and it cau hardly be conceded that , the charge of the court in that case was correct, especially as "tin plates" are otherwise provided for in the Revised Stat-

m

BE

DaVISON.

507

utes, and subjected to the same duty as in the act of 1872. If, in the commercial vocabulary, "tin plates" were known as manufactures of tin or iron, or iron and' tin, there would be ground for the plaintiffs' position; but they are not so known. The agreed case concedes "that the merchandise in question · · · is only known in commerce as 'tin in plates' or 'tin plates! .. In Curtis v. Martin it was held that the charge to the jury, on the trial of the cause, that "it has long been a settled rule of construction of revenue laws, imposing duties on articles of a specified denomination, to construe the article according to the designation of such articles as understood and known in commerce, and not with reference to the materials of which they may be made, or the use to which they may be applied," was correct. 3 How. 109. Chief Justice Taney, in this case, remarks "that this rule of construction has been followed in every circuit where the question has arisen." In Elliott v. Swartwout, 10 Pet. 137, (12 Curtis, Ab. 46,) it was held that "worsted being a distinct article, well known in commerce under that name, worsted shawls with cotton bor. ders, and suspenders with cotton ends, were not manufacture. of wool, under the second section of the tariff act of July 14, 1832, (4 St. at Large, 583.) "It is a settled rule," say the court, "to construe the denomination of articles in tariff laws according to the commercial understanding of the terms used.· The judgment is for the defendant.

In

1.

DESERTION -

'1'6 DAVISON.

(District C<ntrt, 8. D. Nf/ID York. October 30, 1880.)
STATUTE OF LmrrATIOl'i8 - REv. ST. t 1342. - The one hundred and third article of war (Rev. St. § 1342) provides that" no person shall be liable to be tried and punished by a general courtmartial for any offence which appears to have been committed more than two years before the issuing of the order for such trial;,unless, by reason of having aosented himself, or of some other manifest impediment, he shall not have been amenable to justice within tb,at period. Held, that this article is applicable to the offence of desertion. '

508'
2.

BAME-"ABSENCE

FEDERAL

"-REV. ST. f further, that the word "absence" in such article means absence from the jurisdiction uf tile , m.ilitary courts. .OTHER

8: SAME- u

MAmFEST

iMPEDIMENTS" -

REv. ST. § 1342. -

Held

ill

further, that the words" other manHest impediments," referreu to

said article, means only such impediments as operate to prevent the military court from exercising its jurisdiction.

CHOATE, D. J. The petitioner, Thomas Davison, seeks to be discharged on habeas corpus. He has been arre8ted as a deserter from 'the army, and is confined at Fort Columbus, Governor's island. It appears by the return that he enlisted in New York on the twenty-eighth day of July, 1870, for the term of five years, and that he deserted, while on furlough, on the fourteenth day of February, 1872; that he was arrested as a deserter and brought to Fort Coluinbus on the twenty-first day of October, 1880, and that the preliminary steps have been taken by the proper military officers to have him brought before a general court-martial for trial. It appears by the traverse to the return that at the time of the petitioner's enlistment he was of the age of 19 years, 4 months, and 11 days only; that at that time he had a mother living and dependent upon him for support, and that his mother never consented to his enlistment; that at no time since the fourteenth day of February, 1872, has he been absent from the United States, but, on the contrary, has always resided continuously in the city of New York, which is the place where he is alleged to have committed the offence on the twenty-second day of February, 1872, and where he was arrested in October, 1880. Proof of the facts alleged in the traverse has been waived on the part of the respondent, except that it is insisted that it is not competent for the petitioner to show that he was a minor. because he is alleged to have sworn upon his enlistment that he was 21 years of age. 'I'he prisoner's release is claimed on two grounds-First. that at the time of his enlistment he was under the age of 21

IN RE DA VIBON.

years, ann that big enlistment was illegal and void, and therefore that he is not liable to be arrested or held as a deserter; and, secondly, that. more than two years have elapsed since the commission of the alleged offence, and before the issuing of an order for his trial, and that therefore he is not legally liable to be arrested and held for trial as a deserter. 1. As to the first ground, it is objected by the respondent that the oath of the petitioner at the time of his enlistment . is made conclusive upon him by the statute in this proceeding. Such has been held in this court to be the proper con· struction of the statute. In re Cline, 1 Ben. 338; In re Stokes, Id. 34:1. It is also insisted that the enlistment ·of a. minor over 18 years of age, without the consent of his parents, was not illegal under the laws in force at the time the peti. tioner enlisted. Such has been held to be the law in this court. In re Riley, Id. 4:08. It is insisted on the part of the pemioner that more recent deoisions to the contrary have been made on both these points, of such weight and authority as to make it proper for this court to re-examine the questions. Seavey v. SeymQur, 3 Cliff. 439; Turner v. Wright, 2 Pittsb. 370,5 Phil. 296; Hen· derson v. Wright, 2 Pittsb. 440, 5 Phil. 299; Com'rs v. Leake, 8 Phil. 523. It is, however, unnecessary to consider this point, because the other ground for discharging the prisoner is well taken. 2. The one hundred and third ariicle of war (Rev. St.§ 134:2) provides that "no person shall be liable to be tried and punished by a general court-martial for any offence which appears to have been committed more than two years before the issu.i.ng of the order for such trial, unless by reason of having absented himself, or of Bome other manifest impediment, he shall not have been amenable to justice within that period." It is insisted on the part of the respondent that by "ab· sence" is here meant absence from the post of duty, and that this article has no application to desertions. It is certainly a startling proposition that there is no limitation at all upon prosecution for the offence of desertion; that one who has

510

FEDERAL REPORTER.

once been a deserter is subject during the whole of his natural life to be brought before a military court and tried and punished for this offence, even in extreme old age. Yet this is seriously contended by the learned counsel for the respondent. The statute does not require, nor, in my opinion, admit of so strict and narrow a construction. There is nothing in this article itself clearly indicating that it does not extend to every military offence. As it is the only article limiting the time of prosecutions, the presumption is very strong that it extends to every military offence; for, with the single exception of the crime of murder, the almost universal policy of the criminal law is to prescribe a term within which the offender shall be brought to trial. The language of this statute of lImitations must be construed with reference to the use of similar language in other statutes of limitations. The "absence" here intended is obviously, from the context, such an absence as interposes an impediment to the bringing of the offender to trial and punishment. It means absence from the jurisdiction of the military courts; that is, absence from the United' States. ' The "other manifest impediments" referred to in the statute as being such as have prevented the offender from being amenable to justice, are such impediments only as operate to prevent the military court from exercising its jurisdiction over him; as, for instance, his being continuously a prisoner in the hands of the enemy, or of his being imprisoned under sentence of a civil court for crime, and the like. This seems to me to be the sensible and proper construction of the article. It is the construction which has been frequently given to it by the executive department. lOp. Att'y Gen. 383; 13 Op. Att'y Gen. 462; 14 Op. Att'y Gen. 52; Re Harris, ld. 265. Nor, as it seems to me, can the whole effect of the limitation be taken away on the theory that the desertion may be considered for some purposes to be a continuing offence. The offence was complete February 22, 1872, for.the purpose of .this article, and, indeed, in the return, that is alleged to be the time when the offence was committed for which the prisoner is now held.

WOOD V. WRIGHT.

,511

Upon the undisputed facts of the case, there was neither absence nor other impediment to his prosecution, within the meaning of the statute. The prisoner has at all times been within the jurisdiction and amenable to justice, if the charge against him is.true. Therefore he is entitled to be discharged. The facts are such that, if brought to trial, he caunot possibly be found guilty or punished by court-martial for the desertion. If, on the facts, a question could arise whether the prisoner had, as a matter of fact, been absent from the jurisdiction, or, by reason of other impediment, had notbee:n amenable to justice, then it might, perhaps, be the proper province of the military court and not of this court on habeQ.8 corpus to determine that question. But the fact not being disputed that he has resided in the city of New, York continuously ever since his. desertion, the court-martial has :nothing to try, and his arrest for this cause is illegal. Petitioner discharged. NOTE. Notice has been tiled in the United States circuit court of an
application to be made by the military authorities of Governor's Island, through the judge advocate general, to Judge Blatchford for an appeal against the above order.

WOOD,

Ex'x, v. WRIGHT, Assignee.

(Circuit Oourt, D, Indiana. - - , 1880.)
1. ASSIGNEE IN BANKRUPTCY - JUDGMENT CREDITOR. - An assignee in bankruptcy has a prior .equity to a judgment creditor, where, under adverse proceedings, and through superior diligence, he has acquired land from the bona fide purchaser of the bankrupt'S voluntary grantee:

In Equity. DRUMMOND, C. J. This is a bill filed to determine the priority of lien between the plaintiff and the assignee of the bankrupts to a certain tract of land in Wells county, which originally belonged to one of the bankrupts, J. B. Julian. The facts out of wh}ch the controversy arise are I'lubstantially these; Julian sold the land to the other bankrupt